Lee & Ors v Ross & Ors [2003] NSWSC 289

New South Wales Supreme Court

CITATION : Lee & Ors v Ross & Ors [2003] NSWSC 289 revised - 14/04/2003 HEARING DATE(S) : 17 to 19 February, 2003 JUDGMENT DATE : 11 April 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Judgment for Defendants on Plaintiffs' Amended Statement of Claim; declaration in accordance with Cross Claim.

CATCHWORDS : REAL PROPERTY - CONTRACT FOR SALE OF LAND - EXCHANGE OF CONTRACTS - OFFER AND ACCEPTANCE - ACCEPTANCE BY CONDUCT - Vendors acting without solicitor - vendors send to purchasers' solicitor counterpart contract executed by vendors - purchasers' solicitor makes material alteration to photocopy of contract and returns photocopy to real estate agent with cheque for deposit - vendors do not agree to amendment but believe real estate agent's assurance that purchasers will abide by prior oral agreement - vendors do not sign amended counterpart - vendors believe contract on foot which includes prior oral and inconsistent agreement - vendors reply to requisitions on title - whether parties manifested intention to be bound only upon exchange of identical counterparts - whether purchasers' altered counterpart was counter-offer accepted by vendors' conduct in replying to requisitions - principles discussed. - HELD: Parties evinced common intention to be contractually bound only upon exchange of contracts in accordance with usual conveyancing practice - intention miscarried because parties had not agreed on material term and counterparts exchanged were not identical as to material term - parties did not intend to proceed by offer and counter-offer - if purchasers' amended counterpart contract constituted counter-offer it was not accepted by vendors' replies to requisitions because replies contain term inconsistent with purchasers' counter-offer. - CONTRACT - WRONGFUL REPUDIATION - Purchasers' solicitor retained copy of counter-part which was incomplete in that it did not include page containing material term - purchasers insist on performance of contract in manner inconsistent with material term on missing page - vendors purport to terminate - whether purchasers' conduct constituted wrongful repudiation - whether vendors validly terminated. - HELD: If contract existed, vendors had validly terminated it for purchasers' wrongful repudiation. LEGISLATION CITED : Conveyancing Act 1919 (NSW) - s.54A Real Property Act 1900 (NSW) - s.126, s.127 - Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 - Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 CASES CITED : - Harvey v Edwards, Dunlop and Company Ltd (1927) 39 CLR 302 - Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 - Sindel v Georgiou (1984) 154 CLR 661 - Cheshire & Fifoot's Law of Contract (8th Australian Ed., 2002) Andrew Kwang Lee - First-named Plaintiff Catherine Bok Lee - Second-named Plaintiff Ju Hyung Lee - Third-named Plaintiff Na Young Lee - Fourth-named Plaintiff PARTIES : Raymond Ross - First Defendant Bernadine Ross - Second Defendant Karen Ross - Third Defendant Cheryl Ann Thomas - Fourth Defendant Registrar General of New South Wales - Fifth Defendant FILE NUMBER(S) : SC 2787/97 D.H. Murr SC, R.P. Freeman - Plaintiffs COUNSEL : R. Sofroniou - First Defendant P.B. Walsh - Fifth Defendant Daniel Svir - Plaintiffs SOLICITORS : Horowitz & Bilinsky - First Defendant Solicitor for the Registrar General - Fifth Defendant